Barbara Ringer | Copyhype

Copyright Review Principles and Consensus

May 16, 2013 · Terry Hart · 1 comment

Zechariah Chafee, a godfather of 20^th century legal philosophy, wrote an influential article on copyright law in the early twentieth century.¹ At that time, technology was exploding: for the first time in history, it was not only possible to record sound and images, but to transmit them across vast distances instantaneously.

The law of copyright struggled to keep up with this technological advancement. In the 1950s, Congress began a comprehensive revision process. As it stretched into its second decade, former U.S. Register of Copyrights Barbara Ringer shared her thoughts on the process in her 1974 essay, The Demonology of Copyright (PDF). Ringer called back to Chafee’s article, adding her own lessons won from experience about what copyright law should look like:

In his 1945 article, Chafee suggested six ideals to which a copyright statute should aspire: 1) complete coverage ; 2) unified protection, enabling the author to control all the channels through which the work reaches the public; 3) international protection, with no discrimination against foreign authors ; 4) protection that does not go substantially beyond the purposes it seeks to serve; 5) protection that is not so broad as to stifle independent creation by others ; and 6) legal rules that are convenient to handle.

…

There is a seventh goal, which Chafee could not have been as aware of in 1945 as he would be today, and which in fact may be the most important copyright goal of all. It can he stated very simply: a substantial increase in the rights of the author, considered not as a copyright owner but as a separate creative individual. It involves recognition that committees don’t create works and corporations don’t create works, and machines don’t create works. If, for the sake of convenience of companies or societies or governments, the copyright law forces individual authors back into a collective straitjacket or makes them into human writing machines, it will indeed have become a tool of the devil.

A case study for consensus building

Today, the House Judiciary Committee Subcommittee on Courts, Intellectual Property and the Internet will hold a hearing titled, “A Case Study for Consensus Building: The Copyright Principles Project.” The hearing is the first in a planned series that will take place over the next several months aimed at a comprehensive review of U.S. copyright law.

Testifying at the hearing will be Copyright Principles Project convenor Pamela Samuelson (University of California at Berkeley Law School), as well as Project participants Jon Baumgarten (former General Counsel of the U.S. Copyright Office), Laura Gasaway (University of North Carolina Law School), Daniel Gervais (Vanderbilt Law School Intellectual Property Program), and Jule Sigall (Assistant General Counsel for Copyright at Microsoft).

The goal of the hearing appears to be on setting the tone for how Congress discusses copyright issues in a post-SOPA world, and it looks as though it will do so in two ways. First, it will begin by identifying overarching principles that should guide copyright law. And second, it will look specifically at the Copyright Principles Project as a case study for building consensus in an area of law that can sometimes generate a good deal of contention.

The Copyright Principles Project (PDF of report) began in 2007 with participants who included copyright law scholars, private practioners, and lawyers from broader industry firms. It concluded with a broad set of principles as well as a number of recommendations for bringing copyright law more in line with those principles. At the highest level, the Project participants wrote:

A well-functioning copyright law carefully balances the interests of the public in access to expressive works and the sound advancement of knowledge and technology, on the one hand, with the interests of copyright owners in being compensated for uses of their works and deterring infringers from making market-harmful appropriations of their works, on the other. Copyright law should enable the formation of well-functioning markets for creative and informative works that yield benefits for all stakeholders.

Agreeing on principles

The Copyright Principles Project suggests that consensus in the copyright realm is possible. And by leading with the Project as a case study in building consensus, the Subcommittee is sending a signal about how important consensus will be to the future of copyright policy. The Project participants testifying at the hearing should be able to provide the Subcommittee with valuable insights into how it can build its own consensus as it seeks to review copyright law to find out how well it is working.

Many of the Project’s broader points echo what Chafee wrote and Ringer endorsed half a century ago. At the same time, other contemporary scholars have offered their own principles to guide policy makers in ensuring that copyright law works for all.

In Justifying Intellectual Property, legal scholar Robert Merges argues in favor of foundational pluralism — a fancy way of saying that while we may disagree about the deeper principles of copyright (Is it utilitarian? Is it a natural right?) we can reach consensus on midlevel principles that guide how the law is shaped and applied.

Merges then offers his own principles that complement those identified in the Copyright Principles Project. He specifically identifies four midlevel principles in his theory of IP law: (1) efficiency (in the economic sense), (2) nonremoval (“information and ideas in the public domain must not be taken away or privatized”), (3) proportionality (“the scope of a property right ought to be commensurate with the magnitude of the contribution underlying the right”), and (4) dignity (“works covered by IP rights reflect and embody personal attributes of individual creators, therefore justifying special protection for some aspects of creative works”). You can see how readily these principles overlap and augment those other sets already discussed.

Keeping the Creator in Copyright Review

Of course, just as Ringer was concerned forty years ago that individual creators were in danger of being left behind, there is concern that the Copyright Principles Project had not heard from these voices. While it’s true that among the Project participants were private practitioners who have experience dealing with creators when something goes wrong, their perspective only tells a small part of the story of how copyright impacts creators.

In its positive sense, copyright provides the framework that encourages the creation and commercialization of expressive works that advance society at its highest level. To ask whether copyright is working, then, depends not only on whether it provides appropriate judicial remedies for infringement, but whether it is effective on a day-to-day basis. To answer that question, it is imperative that Congress has input from those in the trenches. Creators are engaged in copyright law decisions every day, both when they are creating — where is the line between permitted copying and misappropriation? What is fair use? — and when they are disseminating their works to the public — whether on their own or through various intermediaries.

U.S. Register of Copyrights Maria Pallante noted in her remarks about the Next Great Copyright Act (PDF) that “readability” should also be among the goals of any copyright law discussion. As more and more are affected by copyright laws, it’s important that one should not need “an army of lawyers to understand the basic precepts of the law.” The ideal copyright law will reflect artist and creator concerns in a clear and understandable way. It should not only spell out their rights, but provide meaningful protection of those rights — not only against infringers but also against those who would take advantage of them.

David Lowery spoke about this in a recent Politico op-ed:

Creators are the most affected by the “Project’s” many proposed changes to copyright law. But creators were apparently not even considered as eligible to participate in discussions with these elites.

Any number of creators (including me) would have been glad to hash out ideas for reforms. Ideas we get from on-the-ground practical experience. Experience you won’t find in the ivory towers of academia or corporate corner offices.

As technology makes it easier for all of us to participate in our culture as creators, it is even more important than ever to heed Ringer’s admonition that artists and authors are recognized not only as copyright holders but as separate individual creators. Any review of copyright law should keep that principle in mind above all. It is my hope that the Subcommittee uses the Copyright Principles Project as the title of the hearing suggests: as a case study for building its own consensus de novo — one that includes creators front and center — for reviewing copyright.

Footnotes

Reflections on the Law of Copyright, 45 Columbia Law Review 503 (1945). [↩]

Posted in: Copyright news · 1 comment

Share: Facebook Twitter Reddit Google+ LinkedIn

Copyright is for the author first and the nation second

October 23, 2012 · Terry Hart · 8 comments

At a Congressional Hearing last April, Representative Zoe Lofgren (D-Silicon Valley) grilled Register of Copyrights Maria Pallante over a statement she had made during an interview published in the ABA’s Landslide magazine. Lofgren took issue especially with Pallante’s remark during the interview that “Copyright is for the author first and the nation second.” At one point during the hearing, Lofgren asked Pallante about the remark:

Now, this comment attracted quite a bit of attention among some people, especially my constituents in Silicon Valley, and it seems to me when you look at the Constitution, which empowers congress to grant exclusive rights in creative works in order, and i quote, “to promote the progress of science and the useful arts.” It seems to me that the Constitution is very clear that copyright does not exist inherently for the author but for the benefit for society at large.

Now, I’m concerned when any public official, especially one in charge of regulation of a particular industry or area of law seems to favor particular stakeholders in that very industry. We’d be alarmed, for example, if the chairman of the FCC said the Telecommunications Act was for the telecom companies first and the nation second, and it’s not clear to me how your statement, if it was accurately reported, is any different.

This struck me at the time as a bizarre attempt to create controversy over a relatively benign statement. To set the record straight: Lofgren was wrong, and Pallante was right. Lofgren’s attack is full of misguided statements — not least of which is the notion that the Register of Copyrights is “in charge of regulation of a particular industry or area of law”¹ — but most of all was her misconstruction of the “public interest” in copyright.

Saying that “copyright is for the author first” does not ignore the public interest but rather recognizes that the public’s interest is served when authors are protected. Lofgren’s remarks seem oblivious to the public interest in securing exclusive rights to creators and instead substitute a vague, chameleon-like conception — an “untethered public interest”, one that more often than not provides cover for the private interests of economic users of copyrighted works.

Far from controversial, the public’s interest in encouraging the creation of expressive works by protecting creators’ rights — which Pallante was alluding to in her statement — has been recognized since the earliest days of copyright law. James Madison, the primary architect of the Constitution’s Copyright Clause, said of it in the Federalist Papers, “The public good fully coincides… with the claims of individuals.” Pallante’s remarks, as she notes herself in her response to Lofgren, are primarily a restatement of what the Supreme Court said in Twentieth Century Music Corp. v. Aiken:

The immediate effect of our copyright law is to secure a fair return for an “author’s” creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.

On another occasion, the Supreme Court noted

The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in “Science and useful Arts.” Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.²

To put it bluntly: society benefits when creators get paid. The private right that copyright law secures is what advances the public’s interest in new expressive rights. And the importance of this private right shouldn’t be minimized, as the Ninth Circuit noted in 1981:

Despite what is said in some of the authorities that the author’s interest in securing an economic reward for his labors is “a secondary consideration,” it is clear that the real purpose of the copyright scheme is to encourage works of the intellect, and that this purpose is to be achieved by reliance on the economic incentives granted to authors and inventors by the copyright scheme. This scheme relies on the author to promote the progress of science by permitting him to control the cost of and access to his novelty.³

Other courts have reiterated the public’s benefit from copyright law, especially when considering preliminary injunctions (since the public interest must be considered when deciding to issue a preliminary injunction). Just a few examples:

“There is a strong public interest in the copyright system’s function of motivating individuals to make available their creative works and increase the store of public knowledge.”⁴
“Since Congress has elected to grant certain exclusive rights to the owner of a copyright in a protected work, it is virtually axiomatic that the public interest can only be served by upholding copyright protections and, correspondingly, preventing the misappropriation of the skills, creative energies, and resources which are invested in the protected work.”⁵
“Google argues that the “value of facilitating and improving access to information on the Internet . . . counsels against an injunction here.” This point has some merit. However, the public interest is also served when the rights of copyright holders are protected against acts likely constituting infringement.”⁶
“The object of copyright law is to promote the store of knowledge available to the public. But to the extent it accomplishes this end by providing individuals a financial incentive to contribute to the store of knowledge, the public’s interest may well be already accounted for by the plaintiff’s interest.”⁷

“One of the great fallacies of modern copyright jurisprudence”

The notion of an “untethered public interest”, as I referred to it above, and its ascendancy over the private right has seeped into the copyright skeptic zeitgeist (Lofgren is certainly not alone in her views) However, this has partly been the result of a mistake.

In the 1932 Supreme Court case Fox Film Corp. v. Doyal, a company that licensed films challenged the collection of state taxes on the gross receipts of royalties from its licenses.⁸ The company argued that its copyrights were “instrumentalities” of the federal government and, thus, immune from state taxation.

The Supreme Court rejected this argument, saying, “the mere fact that a copyright is property derived from a grant by the United States is insufficient to support the claim of exemption.” To be exempt from state taxation, the government must reserve some sort of controlling interest in a grant or privilege. But here, as the Court notes earlier, “The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.” In other words, the government only has a policy interest, not a property interest; “After the copyright has been granted,” said the Court, “the Government has no interest in any action under it save the general one that its laws shall be obeyed.”

But then a curious thing happened. This language, which only served to distinguish a pecuniary interest from a general interest, transmogrified into a declaration of the interest itself.

In 1948, the Supreme Court was faced with the question of whether the practice of “block-booking” — “licensing, or offering for license, one feature film or group of features on the condition that the exhibitor will also license another feature or group of features released by the distributors during a given period” — violated the Sherman Act.⁹ In holding that it did, the Supreme Court said, “The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.”

As support, it then stated, “In Fox Film Corp. v. Doyal, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, ‘The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.’”

This case, in turn, was cited by the Supreme Court in the 1984 Betamax case to support the idea that “The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit.”¹⁰ And so, the eisegesis was complete; scholars today continue to rely on this quote, taken out of context, to support the supremacy of an untethered public interest over the private right.¹¹

Legal scholar David Householder has called this notion espoused by the Betamax court, “one of the great fallacies of modern copyright jurisprudence.”¹² As Householder explains:

It would be similarly fallacious to say that in a real estate transaction, the money paid to the seller is only a secondary consideration, with the primary value of the transaction consisting of the conveyance of the parcel to the buyer. Both the money and the land in such a transaction are consideration; neither is more important to the public, although at the time of the transaction the money is more important to the seller and the land is more important to the buyer. The value to society consists merely in the existence of a market for the land so that property may be obtained by those who are likely to put it to better use. Likewise, for intellectual property; the value to society consists in the existence of a market for the authors’ writings. The money paid to the author is by no means secondary. Rather, it is the unavoidable result of the creation of a market because a market cannot exist without the promise of reward to owners of property who choose to place that property on the market.

Echos from 1909

Another element that feeds into this misconstruction of copyright and the public interest is a statement made over a century ago.

During the drafting of the 1909 Copyright Act, New Hampshire Representative Frank Currier submitted a report from the Committee on Patents, which at one point stated, “Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given.” To hear some put it, this lone statement plucked from the middle of a Committee Report represents the be-all and end-all of copyright justification in the US, an explicit and certain rejection of any consideration due the private right itself.

But immediately following, Currier distinguishes exactly what he means by the “benefit of the public,” and it sounds far more like the view expressed by Pallante:

Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.

In enacting a copyright law Congress must consider, as has been already stated, two questions: First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detrimental to the public. The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly. [Emphasis added.]

It’s also worth noting how Currier’s statement comports with what the 1909 Copyright Act actually did to further this public benefit:

The term of protection for copyright was extended by 14 years.
Copyright protection was expanded to include mechanical reproductions (interestingly, Currier said of this provision, “The main object to be desired in expanding copyright protection accorded to music has been to give to the composer an adequate return for the value of his composition”).
New remedies against infringers were added, including impoundment during actions and destruction of infringing copies and plates.
Criminal penalties were expanded to include willful infringment of any right in any subject matter (formerly, only the unauthorized public performance of dramatic works and musical compositions carried criminal penalties).

As the Supreme Court noted in 1939, the 1909 Copyright Act “introduced many changes and was intended definitely to grant valuable, enforceable rights to authors, publishers, etc. … ’to afford greater encouragement to the production of literary works of lasting benefit to the world.’”¹³ That is, the public interest was served by first securing the exclusive rights of creators.

Finally, Currier’s statement regarding the public interest in copyright law is far from an unequivocal proclamation by Congress. In 1975, former Register of Copyrights Barbara Ringer testified in front of Congress during a hearing on the revisions that would become the Copyright Act of 1976. She disagreed that, “Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given.”

This sounds great and for a long time, I felt that this was probably correct. But, the more I have looked upon the status of authors in this country and the fact that the public interest is badly served when authors are badly served, I have felt that too often the ‘public interest’ has been identified with economic users rather than with authors.

In recent years, partly as a result of this whole revision exercise, I have been trying to gage individual issues in terms of their impact upon creativity and authorship, which I consider the ultimate public interest.

The Constitution speaks of the desirability of promoting the progress of science and useful arts, science in the broad sense of learning or knowledge, by offering protection for limited times to authors and inventors.

It seems to me that it is this protection, the exclusive rights that are supposed to be granted to authors, that is the ultimate public interest that the Constitution and its drafters were thinking about. I do not think that this has ever been fully or even partly realized in any copyright law we have had in our entire history.

Footnotes

The US Copyright Office has little direct role in regulating copyright law. The bulk of its work is in administering the registration of copyrighted works. The only area it exercises substantive rulemaking authority is in the triennial DMCA anticircumvention exemption proceedings, a relatively minor aspect of copyright law in the grand scheme of things; see Joseph Liu, Regulatory Copyright, 83 North Carolina Law Review 88, 148 (2004). [↩]
Mazer v. Stein, 347 US 201, 219 (1954). [↩]
Universal City Studios v. Sony Corp, 659 F.2d 963 (9th Cir. 1981). [↩]
ABC v Aereo, No. 12-Civ-1540(AJN), order denying preliminary injunction (SDNY, July 11, 2012). [↩]
Klitzner Industries v HK James & Co, 535 F.Supp. 1249, 1259-60 (ED Pa. 1982); cited by Taylor Corp v Four Seasons Greetings, 403 F.3d 958 (8th Cir 2005); Concrete Machinery v Classic Lawn Ornaments, 843 F.2d 600 (1st Cir 1988); Apple Computer v Franklin Computer Corp, 714 F.2d 1240 (3rd Cir 1983); Coach v Ocean Point Gifts, No. 09-4215, Order on Motion for Default Judgment (D. NJ, June 14, 2010); FMC Corp v Control Systems, 369 F.Supp.2d 539 (ED Pa 2005); TalkISP v XCast Laboratories, No. C05-0055, Report and Recommendation on Motion for Preliminary Injunction (ND Iowa, Dec. 19, 2005); Video Pipeline v Buena Vista Home Entertainment, 192 F.Supp.2d 324 (D. NJ 2002); Budish v Gordon, 784 F.Supp 1320 (ND Ohio 1992); EF Johnson v Uniden Corp, 623 F.Supp 1485 (D. Minn 1985); Albert E. Price, Inc v Metzner, 574 F.Supp 281 (ED Pa 1983); Ass’n of American Medical Colleges v Mikaelian, 571 F.Supp 144 (ED Pa 1983). [↩]
Perfect 10 v Google, 416 F.Supp.2d 828, 859 (2006). [↩]
Salinger v Colting, 607 F.3d 68, 82 (2nd Cir. 2010). [↩]
286 US 123. [↩]
United States v. Paramount Pictures, 334 US 131. [↩]
Sony Corp. v. Universal City Studios, 464 US 417, 429 (1984). [↩]
See, for example, Jessica Litman, Readers’ Copyright, 58 Journal of the Copyright Society of the US 325 (2011); Edward Lee, Technological Fair Use, 83 Southern California Law Review 797, 819 (2010); William Patry, Moral Panics and the Copyright Wars, pg. 123 (Oxford Univ. Press 2009); Pamela Samuelson, Unbundling Fair Uses, 77 Fordham Law Review 2537, 2580-81 (2009); Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 Loyola L.A. Entertainment Law Journal 651 (1997). [↩]
The Progress of Knowledge: A Reexamination of the Fundamental Principles of American Copyright Law, 14 Loyola LA Entertainment Law Review 1, 35 (1993). Householder similarly notes how the notion is premised in part on the mistake discussed above. [↩]
Washingtonian Co. v. Pearson, 306 US 30, 36. [↩]

Posted in: Copyright's Values · 8 comments

Share: Facebook Twitter Reddit Google+ LinkedIn

Why I support the Stop Online Piracy Act

November 16, 2011 · Terry Hart · 27 comments

[With the House Judiciary Committee holding a hearing underway on H.R. 3261, the Stop Online Piracy Act, I'd like to share my thoughts on the bill on a more personal level.]

I’m passionate about the framework provided by copyright law because I am passionate about the expressive works that have been created in the US over the past 200 plus years because of this framework. From the silly to the sublime, to those that educate and those that entertain, these works have advanced our society, our culture, and our economy.

As a media and cultural consumer, I am excited by the increasingly innovative new ways I can access the news, movies, television shows, music, and other works I love online, and I strongly hope that those who create them can continue to create. I believe the Stop Online Piracy Act is both necessary and carefully crafted to ensure creators have effective recourse against sites that profit off misappropriation of their work.

Effective copyright protection, on a fundamental level, is a significant governmental interest, and one of the few enumerated powers of the federal government in the Constitution. In 1832, the Supreme Court said “To promote the progress of the useful arts is the interest and policy of every enlightened government.”¹

Only two years later, Supreme Court Justice Thompson said in his dissent to the seminal opinion in Wheaton v. Peters, “In my judgment, every principle of justice, equity, morality, fitness and sound policy concurs, in protecting the literary labours of men, to the same extent that property acquired by manual labour is protected.”²

The history of copyright law presents a common theme of technological advancement bringing challenges to creators. In the past, we’ve seen these challenges with the introduction of new forms of media that allowed the recording of sound, images, and motion pictures; broadcasting in the form of radio and television; and even advancements in transportation that have made our world smaller and more connected. Today, creators face challenges to adapt to digital technologies and the Internet, which allows global communication on an unprecedented scale.

But no matter how rapidly technology advances, we should not lose sight of the fundamental principles of “justice, equity, morality, fitness and sound policy” that the protection of expression is built on.

In the words of James Madison, “The public good fully coincides” with “the claims of individuals” under copyright law.³ The introduction of new expressive works, whether in the form of books, music, films, television, or photographs, do much to advance this public good. They teach, entertain, and shed light on the human condition. So it is vitally important that those works are protected just as much online as they are offline.

Copyright Online

The Internet today looks vastly different today than it did in 1998, when the Digital Millennium Copyright Act was enacted. There was no Google, no YouTube, and no Facebook. The technologies that make rich, fully-interactive sites like these possible simply didn’t exist at the time. It would be hard to imagine a world wide web like this today. Today’s web allows a myriad of ways for people to engage in communication, commerce, social networking, entertainment, and learning. This is possible because the technology behind the web continued to progress, rather than being frozen in place. The same should be true of copyright law.

The consensus is that the DMCA has generally worked well for copyright holders and service providers. Its safe harbors shield service providers from liability for material uploaded by users where the service provider doesn’t have knowledge that the material is infringing, doesn’t receive a direct financial benefit from the infringing activity where the provider has the right and ability to control the activity, and acts expeditiously to disable access to uploaded material when it receives a notification of claimed infringement.

These notice-and-takedown provisions can be more effective and efficient for removing infringing material than litigation. They work well, in other words, for good faith, legitimate service providers who cooperate with copyright holders to detect and deal with online infringement.

They should not, however, provide cover for service providers who deliberately set out to build sites based on infringement — where, for example, the site was primarily designed to have no other purpose than to engage in or facilitate infringing acts, the site operator has taken deliberate action to remain unaware of a high probability that the site is used for infringement, or the site operator has taken affirmative steps to promote the use of the site for infringing acts.

The DMCA safe harbors were crafted to provide legal certainty in the new online world and protect service providers from the risk of liability for inadvertent or incidental infringement that they aren’t aware of or can’t monitor or control. They certainly weren’t crafted to protect against those who actively and deliberately design and operate their sites to profit off piracy.

In practice, the DMCA notice-and-takedown provisions are ineffective against sites like this. Many creators would find it a full time job to send notices against these types of sites. And the provisions are especially ineffective against sites that are directed at and easily accessible by US residents but located outside the US and dismissive of US law.

Sections 102 and 103 of the Stop Online Piracy Act fill this gap by giving the Attorney General and copyright holders new tools that directly target rogue sites. The goal of this legislation is not to completely eradicate online piracy, or allow copyright owners to “go back to the way things were.” Piracy is inherently part of the copyright landscape, and it will always exist in some form or another.

The goal is rather to allow creators and legitimate intermediaries to continue to develop sustainable business models that allow both widespread dissemination of content and the ability to be remunerated for investing time and money creating that content. Obviously, one of the big challenges facing creators is figuring out these business models, but that doesn’t mean the law shouldn’t also play a role.

Nearly forty years ago, former Register of Copyrights Barbara Ringer delivered an essay at a time when Congress was in the midst of reforming the Copyright Act to ensure it would remain relevant in the information age. Like today, it was a time of rapid technological change, with new stakeholders emerging and contentious debate. But though the technologies and players were different, Ringer’s words remain just as relevant today:

If the copyright law is to continue to function on the side of light against darkness, good against evil, truth against newspeak, it must broaden its base and its goals. Freedom of speech and freedom of the press are meaningless unless authors are able to create independently from control by anyone, and to find a way to put their works before the public. Economic advantage and the shibboleth of “convenience” distort the copyright law into a weapon against authors. Anyone who cares about freedom and authorship must insure that, in the process of improving the efficiency of our law, we do not throw it all the way back to its repressive origins in the Middle Ages.⁴

Copyright Law and Freedom of Expression

The introduction of the Stop Online Piracy Act has raised free speech concerns from various parties. It’s absolutely vital that the proposed bill — any bill for that matter — conforms with the First Amendment, which, I believe, it does. Noted First Amendment expert Floyd Abrams believes the bill is fully compatible with First Amendment protections as well, as he explained in a recent letter.

But it’s also important to keep in mind that copyright law itself serves an important role in furthering the goals of freedom of expression. This role has been recognized since the founding of the United States. As the Supreme Court said in Eldred v. Ashcroft, “the Framers intended copyright itself to be the engine of free expression.”⁵

Founding Father and second president John Adams once wrote, “Property must be secured, or liberty cannot exist.” Our fourth president, and the Father of the Constitution, James Madison added, “The advancement and diffusion of knowledge is the only guardian of true liberty.”

The Copyright Clause in the Constitution incorporates both these ideas, thus serving as a critical component in the protection of liberty. It gives Congress the power to secure to authors the exclusive rights in their writings in order to promote the progress of the useful arts and sciences. The importance of this power cannot be understated, and neither can the importance that these exclusive rights be truly secure in order to promote progress and spur diffusion of new expression.

That copyright law complements rather than conflicts with freedom of expression has been recognized many times since then.

For example, in an 1844 article appearing in The Reasoner magazine, the author writes: “If the public desire a really free press, they must not look to it as a source of taxation; and if they are anxious for truth, for elevated and elevating sentiments, for ideas matured by study and reflection, and an honest exposition of grievances, they must recognise original articles as property, and secure them against a plundering appropriation by a copyright.”

And in an 1880 treatise on the liberty of the press, the author characterizes the “valuable property in the hands of the author who composes and publishes his thoughts” as one of the forms “which the right of free speech and thought assumes.”

Perhaps the best examination of the complementary relationship between copyright and freedom of expression comes Barbara Ringer, who noted:

[I]t is important to recognize that the Statute of Anne of 1710, the first copyright statute anywhere and the Mother of us all, was enacted precisely because the whole autocratic censorship/monopoly/ licensing apparatus had broken down completely. As a result of the bloodless revolution taking place in the English constitutional system, basic individual freedoms, notably freedom of speech and freedom of the press, were becoming established under common law principles. The Statute of Anne marked the end of autocracy in English copyright and established a set of democratic principles : recognition of the individual author as the ultimate beneficiary and fountainhead of protection and a guarantee of legal protection against unauthorized use for limited times, without any elements of prior restraint of censorship by government or its agents.

She later observes, “It is striking that the second and third copyright statutes in the world — those of the United States of America and of France — were adopted immediately following the revolutions in those countries that overthrew autocratic government and were based on ideals of personal liberty and individual freedom.”

Prior restraint and censorship are antithetical to the First Amendment, but doing nothing in the face of rampant online piracy disgraces the goals of freedom of expression as well. The Stop Online Piracy Act helps secure creators’ rights online. Rogue sites jeopardize the ability of creators and firms to invest time and resources into creating new expression that advances society and culture. Current law is insufficient to address this harm; this bill would help restore the security of copyrights online.

Due Process

The rule of law is one of the most central and vital aspects of a free society. The US Constitution guarantees fair and impartial proceedings, protects citizens from arbitrary and unequalapplications of law, and limits what the government can do before depriving someone of life, liberty, or property.

But like freedom of speech, the concept of due process encompasses more than just Constitutional limits. Due process requires that rights have effective remedies available. Doing nothing violates the spirit of the rule of law.

The Stop Online Piracy Act strikes the correct balance between giving copyright holders an effective process for addressing sites whose only purpose is profiting off of the misappropriation of their works and ensuring that legitimate site operators are not punished.

I looked at the process of SOPA in more detail in previous posts: providing a walkthrough, showing why the bill will hit what it aims at, how it complements the DMCA, and why it merely provides new remedies for existing liability.

Conclusion

Sections 102 and 103 of the Stop Online Piracy Act represent a good start for creators who have long noted the injustice of others profiting from online piracy and escaping liability. Web services who are acting legitimately and legally should welcome rogue sites legislation because effective protection of creative labor is vital to a functioning online marketplace, and a functioning online marketplace benefits us all.

With this bill Congress can help secure the exclusive rights of creators. Doing so not only protects creators but also ensures that the development of innovative and sustainable services for consumers to access and enjoy media and content can continue.

Footnotes

Grant v. Raymond, 31 US 218. [↩]
33 US 591 (1834). [↩]
Federalist papers, No. 43. [↩]
Barbara Ringer, Demonology of Copyright (1974). [↩]
537 US 186 (2003). [↩]

Posted in: Copyright reform · 27 comments

Share: Facebook Twitter Reddit Google+ LinkedIn

Demonizing Copyright

June 27, 2011 · Terry Hart · 111 comments

The tagline of this site is “understanding the copyright wars.” The reasons for so much debate surrounding this subject are many, but the why of the copyright wars might be boiled down like this:

The onslaught of the new technology, combined with the introduction into the international copyright system of countries with different needs and with conflicting economic and political concepts, leaves the future of copyright very much in question.

More interesting, though, is the level of rancor surrounding the debates about that future:

Like any other law, copyright is a pragmatic response to certain felt needs of society and, like any other law, must change in scope and direction as these needs change. But changing any law is never an easy matter, and the case of copyright is made much more difficult by the religious fervor and theological arguments thrown at each other by the contending parties. The personal anger, the emotion, the presentation of viewpoints in stark black-and-white terms, are quite different in degree and character from what one might find in disputes over, say, admiralty or insurance law.

It is easy to make fun of the kind of confrontation I am talking about, where the mere mention of a word like “monopoly” or “property” will cause chairs to be pushed back from tables, faces to redden, breathing to shorten and bitter words to be exchanged.

Most interesting? These words were written in 1974, by the late Barbara Ringer. A copy of her essay, The Demonology of Copyright, is available at the Copyright Office’s website, and it is highly recommended reading.

The Engine of Free Expression

One of the themes Ringer explores is how copyright emerged at a time when democracy was replacing more repressive forms of government in the western world. It’s true that copyright law has its genesis in early printing monopolies, and the privileges granted to publishers went hand in hand with government control over what could be published. But Ringer notes that by the 18th century, a fundamental shift had occurred in England:

As a result of the bloodless revolution taking place in the English constitutional system, basic individual freedoms, notably freedom of speech and freedom of the press, were becoming established under commonlaw principles. The Statute of Anne marked the end of autocracy in English copyright and established a set of democratic principles: recognition of the individual author as the ultimate beneficiary and fountainhead of protection and a guarantee of legal protection against unauthorized use for limited times, without any elements of prior restraint of censorship by government or its agents.

This wasn’t an isolated occurrence:

It is striking that the second and third copyright statutes in the world — those of the United States of America and of France — were adopted immediately following the revolutions in those countries that overthrew autocratic government and were based on ideals of personal liberty and individual freedom. The Rights of Man in both cases certainly included the Rights of the Author, and the French word for copyright, “le droit d’auteur,” reflects this philosophical approach literally.

With this theme in mind, Ringer turns to other topics, including the sharp debates over the words used in the copyright context, like “monopoly” and “property.” Next, she takes a look at the goals of copyright, and reminds readers that these goals don’t dissipate in the face of rapid technological changes:

I believe it is society’s duty to go as far as it can possibly go in nurturing the atmosphere in which authors and other creative artists can flourish. I agree that the copyright law should encourage widespread dissemination of works of the mind. But it seems to me that, in the long pull, it is more important for a particular generation to produce a handful of great creative works than to shower its schoolchildren with unauthorized photocopies or to hold the cost of a jukebox play down to a dime, if that is what it is these days.

If you change photocopies and jukeboxes to their modern day equivalents, then the arguments alluded to here are the same ones heard today. The challenges facing creators in the digital era, it seems to me, are much the same as the challenges they faced four decades ago when Ringer wrote those words (though the scope of the challenge is larger).

Ringer concludes with a strong endorsement of ensuring the continuing vitality of creator’s rights. Though the words are nearly forty years old, the sentiment remains true:

If the copyright law is to continue to function on the side of light against darkness, good against evil, truth against newspeak, it must broaden its base and its goals. Freedom of speech and freedom of the press are meaningless unless authors are able to create independently from control by anyone, and to find a way to put their works before the public. Economic advantage and the shibboleth of “convenience” distort the copyright law into a weapon against authors. Anyone who cares about freedom and authorship must insure that, in the process of improving the efficiency of our law, we do not throw it all the way back to its repressive origins in the Middle Ages.

Posted in: Copyright history · 111 comments

Share: Facebook Twitter Reddit Google+ LinkedIn

Who Benefits from Copyright?

May 05, 2011 · Terry Hart · 7 comments

One of the recurring themes seen in some criticisms of copyright law is that it is weighted too strongly in favor of creators and copyright owners, with the public good taking a back seat.

A couple of recent online posts provide examples of this argument. The first is from politician and Swedish Pirate Party founder Rick Falkvinge, who writes at TorrentFreak about Why the Copyright Industry Isn’t a Legitimate Stakeholder in Copyright. Journalist Julian Sanchez provides the second in Things that are Irrelevant to Copyright Policy.

Both provide similar views of what copyright policy should be. Falkvinge states that the purpose of copyright “is to maximize the available culture. Nothing more and nothing less.” To Sanchez, the question when considering copyright policy “is whether a marginal restriction on the general ability to use information incentivizes enough additional information production over the long run to justify denying that marginal use to every other human being on the planet, whether for simple consumption or further creation.”

I don’t want to go into a deeper discussion of either article here (though I welcome readers to discuss them further in the comments). Rather, I want to address the broader point made, as it is emblematic of a point made by copyright critics.

It’s true that copyright’s ultimate beneficiary is the public. But the immediate beneficiary is creators. More importantly, the best way to ensure the public benefits the most from copyright law is by ensuring that creators have secure and stable rights to their creations. It makes little sense to argue otherwise — if the public benefits from the creation of new works, how is that interest served by reducing the incentive to invest in creating new works?

How Copyright Benefits the Public

In the US, the Constitution gives Congress the authority, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors … the exclusive Right to their … Writings.”

Explanations of how the public receives its benefit through the law begin with the author of the Copyright Clause itself, James Madison. In the Federalist Papers, No. 43, Madison writes, ”The public good fully coincides in both cases with the claims of individuals.”

Since then, the Supreme Court has expanded this explanation:

• ”Copyright is a right exercised by the owner during the term at his pleasure and exclusively for his own profit and forms the basis for extensive and profitable business enterprises. The advantage to the public is gained merely from the carrying out of the general policy in making such grants and not from any direct interest which the Government has in the use of the property which is the subject of the grants.” (Emphasis added.)¹

• ”The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.” (Emphasis added).²

• ”The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”³

In Eldred v. Ashcroft, the Supreme Court took on the idea sometimes made that there is some kind of bargain implied in the Copyright Clause.⁴ It is not a quid pro quo, as the grant of patent rights entails. With copyright protection, “disclosure is the desired objective, not something exacted from the author in exchange for the copyright.” As explained by the Court, unlike patent law, “copyright gives the holder no monopoly on any knowledge. A reader of an author’s writing may make full use of any fact or idea she acquires from her reading.”

Access to Culture

At times, copyright’s critics argue that the purpose of the law is not only to increase the creation of new works, but also to increase the public’s access to those works. This argument only works if we expand the meaning of “access” to include not only the ability of someone to read, watch, or listen to copyrighted works — the number of outlets for getting legal content has exploded in recent years — but the ability to do so instantly, in as many formats as possible, for as close to free as possible.

The four dissenting Justices in Sony v. Universal City Studios warned against this idea of access. It’s “tempting,” they said, to reduce the scope of copyright protection to “permit unfettered use” by new technologies “in order to increase access,” but doing so “risks eroding the very basis of copyright law, by depriving authors of control over their works and consequently of their incentive to create.”

The Justices added these remarks from Abraham Kaminstein, Register of Copyrights during the run-up to the 1976 Copyright Act revision:

I realize, more clearly now than I did in 1961, that the revolution in communications has brought with it a serious challenge to the author’s copyright. This challenge comes not only from the ever-growing commercial interests who wish to use the author’s works for private gain. An equally serious attack has come from people with a sincere interest in the public welfare who fully recognize … ‘that the real heart of civilization… owes its existence to the author’; ironically, in seeking to make the author’s works widely available by freeing them from copyright restrictions, they fail to realize that they are whittling away the very thing that nurtures authorship in the first place. An accommodation among conflicting demands must be worked out, true enough, but not by denying the fundamental constitutional directive: to encourage cultural progress by securing the author’s exclusive rights to him for a limited time.⁵

Conclusion

The public, rather than copyright holders, is the true beneficiary of the law. It benefits by the creation of works that might otherwise not have been created, and by the exclusive rights encouraging dissemination. Julian Sanchez even notes this, saying, “We are all the massive beneficiaries of millennia of accumulated human scientific knowledge and cultural output, and not one of us did anything [to] deserve a jot of it.”

Barbara Ringer, the first female Register of Copyrights in the US, provides the best summary of the argument against claims that the public’s interest is underserved by copyright law. Her words, spoken over 30 years ago, are just as relevant today:

The 1909 Joint Congressional Committee, in its report No. 2223, made a statement which has been quoted many times and which I agreed with at one time, but which I have ceased to agree with.

I will paraphrase it. It was that copyright is not for the protection of the author, but for the public and that where the author’s interests and the public’s interests conflict, the author must yield.

This sounds great and for a long time, I felt that this was probably correct. But, the more I have looked upon the status of authors in this country and the fact that the public interest is badly served when authors are badly served, I have felt that too often the public interest has been identified with economic users rather than with authors.

In recent years, partly as a result of this whole revision exercise, I have been trying to gage individual issues in terms of their impact upon creativity and authorship, which I consider the ultimate public interest.

The Constitution speaks of the desirability of promoting the progress of science and useful arts, science in the broad sense of learning or knowledge, by offering protection for limited times to authors and inventors.

It seems to me that it is this protection, the exclusive rights that are supposed to be granted to authors, that is the ultimate public interest that the Constitution and its drafters were thinking about.

I do not think that this has ever been fully or even partly realized in any copyright law we have had in our entire history.

[…]

I think that the system that we have had has been based on the desire to induce dissemination, make works available to the public by offering protection to authors.

I think that this system is now subject to some difficulty because of the fact that the new technology has made it an absolute detriment to disseminate. In other words, an author in certain situations who lets the bird out of the cage, finds that there is no way to regain it, that once he has made a tape and it has been played over the radio or television, he finds suddenly it is being pirated or made in duplicates all over the country.

It is very, very difficult in that situation for him to realize any economic gain or reward for his creation and there may be situations in which he would prefer to keep his bird in its cage, so to speak.

I am speaking in terms of music, but I think the example is better in some areas where there is a more realistic possibility of exercising complete control.

The task of your committee, as I see it, is to try in some way to evaluate the impact of the new dissemination media on the basic task of giving authors a reasonable return and inducing them to let the work go out to the public.⁶